COMMONWEALTH vs. KEVIN MANAGO.

KAPLAN, J. Upon indictments of the defendant, Manago, for armed robbery and for assault and battery with a dangerous

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weapon, a jury returned a verdict of guilty of armed robbery and, in respect to the charge of assault and battery with a dangerous weapon, verdicts of guilty of the lesser included offenses of assault with a dangerous weapon and assault and battery. On the armed robbery conviction, the judge sentenced the defendant, a youth turned seventeen just before the date of the incident, to a ten-year term at M.C.I., Concord. [Note 1] By consent, the judge placed on file the conviction of assault with a dangerous weapon. The conviction of assault and battery the judge treated as "surplusage."

The jury could have seen the facts roughly as follows. Around 8:00 P.M., November 13, 1985, Timothy M. Flynn, the victim, was walking down Massachusetts Avenue past St. Botolph Street in the South End district of Boston. He was going home to his place at 791 Tremont Street. As he passed or brushed by a man walking in the same direction, he heard the man muttering. He quickened his pace. The man overtook him, grabbed him by the right shoulder, turned him around, threw him to the ground, and got astride him. He had a brick in his hand and swung it. [Note 2] The victim was not clear whether he was struck with the brick. The man "swatted" him perhaps four times with an open hand or fist, said, "Give it up; give up your fucking money," and went through his pockets. His glasses flew off, and his keys and license were cast to the side.

James Hayes, walking down Massachusetts Avenue, came upon the two on the ground. The man was holding the victim's head against a fire hydrant and striking him with a brick. Hayes called out, "What's going on?" The man, turning toward Hayes, answered, "What the fuck does it look like?" Instead of trying to intervene, Hayes ran around the men and further down Massachusetts Avenue a short distance to Wally's Cafe and made a "911" telephone call to the police. As Hayes came out

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of Wally's, he saw the man fleeing down Massachusetts to Columbus Avenue. [Note 3]

Hayes returned to the scene and assisted the victim in recovering his keys, license, and some coins scattered on the ground (additional coins were later recovered). The victim had a cut on the bridge of his nose and appeared shaken up, but came around quickly. Very shortly, a police cruiser appeared -- the spot, more precisely, was 409 Massachusetts -- and Officers Carl Nemes and Roy Sergei emerged. The victim told the officers his assailant was a young black man, about as tall as the victim (six feet, one inch), or a couple or three inches less, stockier than the victim (then weighing 135 pounds), wearing a waist length grayish bluish jacket, perhaps of leather or vinyl, and light colored pants; under the jacket (partly open), a sweat-shirt. Hayes described the man as black, young, about Hayes's height (five feet, ten inches), wearing a black or dark blue jacket or top garment, and white sneakers.

The officers radioed a description and invited the victim to get into the cruiser to make a quick tour of the neighborhood in hopes of sighting the assailant. The cruiser proceeded down Massachusetts, turned right on Columbus, left on Northampton Street, and right on Tremont to Shawmut. A radio message directed the cruiser to 521 Massachusetts (about 350 yards from 409). One or two police cars, two or more officers, and others, including the defendant, were at the location as the cruiser arrived. Probably an observer could surmise that it was the defendant who was the cause or nub of the gathering. [Note 4] The victim first said the defendant was not wearing the jacket. He then identified him firmly as the assailant. Hayes, who had walked down to 521, also made a definite identification. [Note 5] The

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defendant was arrested; the time was 8:15. He was wearing a blue sweatshirt (with hood and pouch) and light colored pants. On his person were found five one-dollar bills. [Note 6]

The foregoing draws on the testimony of the victim, Hayes, and officers Nemes and Sergei, the witnesses called by the Commonwealth. The defense called Clara Manago, the defendant's mother, residing at 99 Camden Street. She testified she was awakened by the sound of the slamming of the door of her apartment at 7:58 P.M. (by the clock) on November 13, which she took to mean that her son was leaving. She said he called from the police station between 8:15 and 8:20 (again by the clock). There was evidence that such a call, ordinarily allowed after booking, would not have been made before 8:30. [Note 7] The witness said her son did not have a jacket; also that perhaps about 6:00 P.M. she had given him two dollars to add to his three to buy a sandwich and soft drink. [Note 8] It is fair to say that this witness appeared very weak under cross-examination.

1. Defense counsel, in closing to the jury, remarked that although the victim was an honest man and was sure of his identification, he might be -- and the defense was arguing that he was -- mistaken. And a similar suggestion could be made about the witness Hayes. The prosecutor, in his closing argument, responded: "What have you heard that could suggest they are making an honest mistake? I suggest you haven't heard anything that would suggest it was an honest mistake.

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They're both [the victim and Hayes] absolutely certain." The prosecutor went on to try to show that the identifications were solid.

The defense contended that the prosecutor's remark about "[w]hat have you heard" was a foul blow because, according to the defense, it directed the jury's attention to the fact that the defendant had not taken the stand. This seems to us a manifest distortion; it is unlikely in the extreme that a jury would be led by the remark to an invidious reflection about the defendant's silence. [Note 9]

A prosecutor is entitled to urge upon the jury the strong points in the Commonwealth's submission as well as the weak points in the defendant's submission, and is not to be barred from doing so by some apprehension that his speech may give rise to a passing or indirect or collateral reflection upon what the defendant might have said if called. The opposite extreme is reached "where a prosecutor, in lieu of saying in terms that the defendant has failed to testify, remarks archly that the Commonwealth's case has not been answered or remains uncontradicted, when it is apparent that a response must have come, if at all, from the defendant." Commonwealth v. Sherick, 23 Mass. App. Ct. 338, 343-344, S.C., 401 Mass. 302, 304 (1987). The issue may be put thus: "[I]t is not in every case where the fact of the silence is in some way referred to that the privilege [against self-incrimination] is abused. Indeed, in many situations it is not possible for a prosecutor absolutely to skirt the fact." We ask "whether the jury's attention is being directed to the defendant's silence or failure to produce evidence as the basis for the prohibited inference, or is rather directed to a different matter, with the silence, in the rather unlikely event it draws any attention, being sensed as collateral

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or incidental." 23 Mass. App. Ct. at 344 (footnote omitted). Cases on either side of the line are assembled at 23 Mass. App. Ct. at 343-346. Compare Commonwealth v. Storey, 378 Mass. 312, 323-324 (1979), cert. denied, 446 U.S. 955 (1980); Commonwealth v. Ferreira, 381 Mass. 306, 315 n.13 (1980).

On the assumption that the prosecutor's remarks were on the wrong side of the line and prejudicial, the defense complained that the judge's instructions were not strong enough to overcome the prejudice. We reject the assumption. At all events the judge charged on the presumption of innocence, proof beyond a reasonable doubt, and the defendant's right to remain silent without raising any inference of guilt. He did not use the defendant's proposed form of words, but the substance was similar. See Commonwealth v. Kelley, 359 Mass. 77, 92 (1971). Cf. Commonwealth v. Thomas, 400 Mass. 676, 679-680 (1987). Contrast Commonwealth v. Domanski, 332 Mass. 66, 70-71 (1954). [Note 10]

2. After deliberating briefly, the jury asked a question which resulted in a charge, in effect, that assault with a dangerous weapon could serve as a lesser included offense under the indictment for assault and battery with a dangerous weapon. [Note 11]

After about three hours of deliberation, the jury reported difficulty in reaching decision, and the judge encouraged them to deliberate further.

After about six hours and indications from the jury of a deadlock, the judge gave the jury the Rodriquez instruction (Commonwealth v. Rodriquez, 364 Mass. 87, 101 [1973]). [Note 12]

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He added that there were two indictments and it was possible for the jury to reach a (unanimous) verdict on one but not on the other. This was correct, see, e.g., United States v. DiLapi, 651 F.2d 140, 146-147 (2d Cir. 1981); cf. Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 33 (1984), but the defendant suggests that the charge, although merely informative on its face, could have encouraged the jury to yield to compromise and bring in a "partial" verdict on one indictment not on their true view of the merits but in order to resolve their own differences and to please the judge. This perhaps overestimates the suggestibility of the jury. It may be enough to say that the jury in the end did not bring in a partial verdict but rather a verdict of guilty on the indictment for armed robbery and verdicts of lesser included offenses under the indictment for assault and battery with a dangerous weapon.

After the Rodriquez charge, the jury returned with a question, "Does a person have to be arrested before that person is brought to a police station, or can that person be merely a suspect in order for that person to be brought to the police station?" [Note 13] The judge indicated that there might be circumstances in which a suspect could be brought to a police station without having been previously arrested, but he said that here there was a previous arrest; the question appeared irrelevant; and the jury should not engage in speculation. [Note 14] The defense objected that the negative remark about speculation might inhibit the jury from considering whether the identifications took place in circumstances affecting their reliability. This objection was indeed speculative; and we note that the judge had already given the model charge on the evaluation of evidence bearing on identification. The defense now suggests that a jury, told that one of their questions was irrelevant, might feel awkward about asking another, or be cowed or embarrassed into finishing the case

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with a verdict. This observation, besides being conjectural, may underrate the sangfroid of an average jury.

3. The defendant has not disputed that the verdict is supported by the evidence beyond a reasonable doubt, except for a pass at arguing that there should have been a required finding on armed robbery because the victim was finally doubtful about how many bills he was carrying at the time of the attack. There was plenty of evidence that the defendant went through the victim's pockets and took control of the defendant's coins, and keys, and license. (Had Hayes not appeared the defendant might have acted more deliberately.) This exertion of control over the victim's property was itself sufficient to supply the larceny element of the robbery. See Commonwealth v. Luckis, 99 Mass. 431, 433 (1868); Commonwealth v. Flowers, 1 Mass. App. Ct. 415, 418 (1973); Commonwealth v. Bradley, 2 Mass. App. Ct. 804, 805 (1974).

Judgment affirmed.